In the very first season of FX’s excellent comedy series “The League,” there is a scene where one of the characters who is a defense attorney is negotiating with another one of the characters who is a prosecutor. The two are discussing how to resolve the defense attorney’s client’s criminal case and the terms of the negotiation are draft picks and trades in their fantasy football league. The defendant is clearly and rightly disturbed by the fact that his life is a bargaining chip in a fantasy football league. The scene is frankly very funny and that is in no small part because what the attorneys are doing in the scene is terribly unethical. I will explain why below.
The inspiration for this blog post, as with most of my blog posts, came from a potential client (who I am happy to say is now an actual client) who asked me in our first consultation if I trade one client’s case for the benefit of another. The way the client actually asked the question was something along the lines of “I know you defense attorneys work closely with the prosecutors and I am wondering if you sit down with the prosecutor with a stack of your cases and start making concessions on one case in order to get benefits in others.” As soon as this potential client was done asking me the question, I immediately thought of the scene described above and I could not help but smile. Here is what I explained to that potential client before he became my actual client.
An attorney is the advocate of the client. Attorneys have a fiduciary duty to their clients. What that means is that attorneys have a duty to represent the client’s interests and no one else’s. If an attorney has an interest that is in conflict with the client’s interest (what you may have heard referred to as a “conflict of interest”) the attorney has an ethical and professional duty to not represent that client. In law school, many different examples of this are given. An attorney should not defend a person who is accused of victimizing his or her immediate family. An attorney may not represent both sides of a contract dispute. An attorney may not represent two co-defendants in the same matter. The examples are endless.
The scene from “The League” is an illustration of an attorney who is looking out for someone other than his client, but an attorney may not seek a benefit for himself at the expense of his client. Therefore, an attorney may not use plea negotiations to try to get a better fantasy football draft pick.
Now, you might be thinking, “Joel, that makes sense, but the potential client you just told us about was asking not about getting a benefit for yourself, but about negotiating benefits for your clients at the expense of other clients!” Fair, dear reader. However, as I see it, the two situations are not really that different. When I enter my appearance on behalf of a client, I am communicating that I am that person’s champion. My client is entitled to expect that I will only act in their favor and that my decision-making will be geared towards helping them. Full stop. If I ever were to find myself in a situation where I feel I can get a good outcome for one client by throwing another client under the bus, I have to withdraw from at least one of those two cases (maybe both), because to not do so is to break my promise to all of my clients that I am on their side and working for them. So, whether it is trying to get a better pick in the fantasy football league or it is trying to get a prosecutor to cut another client a break, if it involves getting less for one of my clients, then it is not something I am doing.
There are very few things that I believe in with my whole being. The presumption of innocence is probably the first. The right to remain silent is maybe the second. The right to conflict-free counsel is a close third.
If you or anyone you know needs help from a competent, talented, courageous, ethical, and conflict-free attorney, give me a call.
